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Payers wary of physical comp claims containing alleged mental injuries

mental injuries

A makeup artist in Louisiana who stepped into a pothole and injured her ankle and foot. A plastics manufacturer maintenance worker in West Virginia who suffered a severe femur fracture when a motor fell on him. A sanitation worker in Pennsylvania who suffered a crushing injury to his leg in an accident on a snowy road. A weaver for a fiber manufacturer in South Carolina who fell backward and struck her head. 

These are among the surge in workers compensation cases seen in courts nationwide over the past two years involving a mental injury later attached to a physical comp claim. 

“They do happen rather frequently — more than ever,” said Paul Fires, partner and co-chair of the Workers’ Compensation Group for Weber Gallagher Simpson Stapleton Fires & Newby LLP in Philadelphia. 

All of the examples listed above were dismissed by courts, some after years of litigation. Meanwhile, some mental components have been accepted by the courts: In 2020, a Texas appeals court ruled that a truck driver’s shoulder and knee injuries led to pain syndrome and compensable mental health issues. Also in 2020, a Pennsylvania court ruled a health care worker’s pinched nerve had exacerbated her preexisting condition of major depressive disorder. 

As workers become more willing to accept or allege that they are suffering from anxiety or depression following an injury and with a plaintiff’s bar more willing to add such requests for treatment or benefits to a physical claim, legal experts say the trend in the courts will continue. 

“For every claim that you can reference (in court) there are probably 200 that are happening that didn’t get that far,” said Alan Leff, partner in the Philadelphia office of Goldberg Segalla LLP, which represents employers in workers compensation litigation. “It happens constantly.” 

One incentive to include mental injuries is that many of the psych components later added fall outside of state-mandated treatment schedules for physical injuries and can quickly up the claim’s worth, said Mike Fish, Birmingham, Alabama-based founding member of the comp defense firm Fish Nelson & Holden LLC and past president of the National Workers Compensation Defense Network, an alliance of comp defense attorneys that monitor legislation.

“I see this a lot in the scheduled injury scenario” where states limit benefits for physical injuries, he said. “They throw in psych because it’s so subjective.”

The trend appears years in the making. 

In 2016, Chicago-based managed care company Rising Medical Solutions surveyed 492 claims professionals and ranked psychosocial issues such as depression and anxiety as the No.1 barrier to successful claim outcomes. 

The same year, Hartford Financial Services Group Inc. analyzed its workers comp claims data from 2002 to 2015 and found that 10% of claims featured at least one psychosocial issue and that those claims account for 60% of total claims costs.

Given the “nebulous” nature of mental injuries, employers and workers compensation insurers are walking a fine line between what is compensable and what faces a tough road in litigation, Mr. Leff said.

“Mental cases are among the hardest to prove because it is such a subjective area of medicine, and the courts don’t give away the store without really solid evidence, really solid proof,” Mr. Fires said. 

Why not just accept the mental condition and avoid costly litigation? Plaintiffs’ attorneys say the path into the courtroom is avoidable (see related story) yet defense attorneys for employers and insurers say that making it easier to claim a mental condition — without expert testimony and the checks and balances of court proceedings — could leave employers on the hook with comp claims they can’t close. 

Carin Burford, shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Birmingham, Alabama, said mental claims can “spiral out of control.” The worst-case scenario, that a worker never returns to work because of a subsequently diagnosed and accepted mental condition, isn’t an outside possibility, she said.

“When you have a mental health issue it’s very difficult to reach maximum medical improvement,” Ms. Burford said. 

In what could have been a straightforward (physical injury) claim, all of a sudden now you are not looking at a couple of weeks or months to reach (maximum medical improvement), you are looking at a couple of years.” 

With a mental injury “you could now be looking at a total disability award that was never envisioned by workers compensation,” she said. “That’s the reason why some states refuse to recognize mental claims and others have limited it to something extraordinary or certain occupations,” such as post-traumatic stress disorder suffered by a first responder.

Restrictions following work accidents may lead to psych problems  

Attorneys representing injured workers say mental components of a physical injury claim — anxiety and depression among the most common — are often the result of the loss of livelihood, disability, delayed treatment or mishandled claims. 

The challenges can be particularly acute for those who feel a sense of displacement as a result of their injury.

“There are some injured workers who love their jobs so much, they identify with their jobs, and it runs the gamut of occupations — bus drivers, nurses, educators, they take pride in their jobs,” said Christel Schoenfelder, an attorney with Rose, Klein & Marias LLP in Ontario, California, who represents injured workers.

“When as the result of a workplace injury they can’t go back to their job, some experience a loss of their identity
in society.”

Some workers “had something taken away from them as a result of a workplace injury,” she said, recalling her caseload of stories: the leg injury that didn’t allow the father to coach his kid’s team; an arm injury that doesn’t allow a mother to pick up her toddler; an injury that doesn’t allow a worker to sleep in the same bed as his spouse. 

They’ve had “different aspects of their lives get taken away from them because of their injury, and they feel the anxiety and the depression and sadness,” she said.

Jason Marcus, a partner in the Sacramento, California, office of Marcus, Regalado, Marcus & Pulley LLP and past president of the California Applicants’ Attorneys Association, told the story of an injured welder he represented who “broke down during a deposition over how much his life had changed as a result of his injury.

“This welder who can’t work, who had surgeries and suffers — he was a strong guy (and is) now limited in what he can do,” Mr. Marcus said.

Attorneys who represent employers say there’s grappling in understanding whether original injury is related to mental condition and that, in some cases, the costs may not belong in the comp system. 

Carin Burford, shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Birmingham, Alabama, said poor recoveries from surgeries and treatment can also contribute to mental health issues.

It “is really tricky because most people whenever they get medical treatment, it does not meet their expectations; most people are not going to be 100% after having medical treatment because they have had an injury. And that’s terrible,” she said. 

Taking opposition to a mental injury “is a tough position in 2021 because of the changing ways mental health is addressed,” said Alan Leff, Philadelphia-based partner at Goldberg Segalla LLP, which represents employers. 

“Depression is a common experience” but doesn’t always need to be included in a workers comp claim, he said. “As a defense (attorney) you have to be very careful early on that you don’t open the door to unnecessary mental health treatment to expand the claim.” 

Mr. Marcus said adversarial situations often start with the mishandling of the physical aspect of a claim, such as cases in which a worker’s medical treatment is denied and subsequent requests for mental care arising from the physical condition are also denied.

“Those claims can cost more than had they just provided treatment at the onset,” he said. “There are insurance companies that get it. They have come up with programs to fast track treatment, but we often get bogged down with litigation, and nothing good comes from that.” 

“When you are in pain you are not happy. If I have a client who is in pain that affects their mental status … it adds to the adversarial nature of it. It creates an us versus them,” Mr. Marcus said. “We get bogged down in the fight (over) what really caused it, rather than, say, why don’t we help someone. We get bogged down: Is this a preexisting condition, or did the physical injury cause this?”

Most clients want acknowledgment, Mr. Marcus added. “They want to get well, they want to get back to their life,” he said.